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6th Circuit Court Lifts Stay On Vaccine Mandate for Large Employers

December 18, 2021

In an Opinion released late on Friday, Dec. 17, the United States Court of Appeals for the Sixth Circuit has dissolved the prior stay first issued by the United States Court of Appeals for the Fifth Circuit on Nov. 6 (and later reinforced on Nov. 12 ) of the Emergency Temporary Standard (“ETS” or “Rule”) issued by the Occupational Safety and Health Administration (OSHA) on November 5, compelling most private employers with 100 or more employees to assess and record their employees’ COVID-19 vaccination status, develop a COVID-19 vaccination policy, and either require COVID-19 vaccination of employees or provide them an option to wear face coverings and undergo weekly COVID-19 testing, among other requirements.

In a 2-1 ruling from a three-judge panel on OSHA’s Motion to dissolve the Fifth Circuit’s prior stay of the ETS, the Sixth Circuit concluded that the group of states, private employers, religious organizations, and other challengers who sought to stay the rule in various Federal Courts of Appeals all across the United States before a multi-state litigation process was triggered and all the Petitions were consolidated in that Court were not likely to succeed on the merits of their challenge. Essentially, the panel concluded that the ETS was within OSHA’s statutory authority to address a “grave danger” (COVID-19 transmission in the workplace) and also was “necessary” to address it, and that the constitutional arguments raised by the challengers – including those based on the ‘Major Questions’ doctrine and the Commerce Clause, among others – were not likely to succeed.

This Opinion is not the end of the line in the battle over the legality of the ETS – challengers have already filed at least one Notice of Application for Stay of the Sixth Circuit Order with the United States Supreme Court. In the very short term, however, this Opinion at least temporarily clears a legal obstacle to enforcement, and OSHA has already issued a statement on its website that it intends to go ahead and resume enforcement of the Rule, but with adjusted compliance dates.

Specifically, OSHA has indicated that the initial compliance deadline for every requirement in the ETS except the mandatory COVID-19 vaccination or weekly testing/required masking (Dec. 5, 2021) will instead be Jan. 10, 2022. Meanwhile, rather than Jan. 4, 2022, being the deadline for the vaccine mandate or weekly testing/required masking, the new deadline for compliance in that regard is Feb. 9, 2022.

At this point, employers may wish to consider affirmatively revisiting preparation and implementation of the preliminary measures which OSHA directed be done by the prior initial compliance deadline, so at the very least they are ready to go on Jan. 10 if future legal challenges do not once again stay the Rule, but whether any employer should now actually go ahead with those steps is probably a case-by-case determination subject to several variables. The fact remains that the Sixth Circuit dissolution of the prior Fifth Circuit stay is a current snapshot in time – albeit an important one – and the legal landscape surrounding the ETS remains volatile and still subject to change.

Please don’t hesitate to contact your Clark Hill labor and employment attorney for assistance with specific questions about what is best for your business in light of this Opinion. Please visit our COVID-19 Resources page for the latest developments.

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